Citation NR: 9801733
Decision Date: 01/22/98 Archive Date: 02/02/98
DOCKET NO. 96-51 102 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to service connection for the cause of the
veteranís death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Carole R. Kammel, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1943 to
December 1945. The veteran was awarded the Purple Heart and
Combat Infantrymanís Badge.
This matter comes before the Board of Veteransí Appeals
(Board) on appeal from a July 1996 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan, which denied service connection for the
cause of the veteranís death.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in essence, that the veteranís
service-connected schizophrenic reaction caused or materially
contributed to his death. She asserts that the veteran had a
long-standing psychiatric disability which led to bizarre
behavior during his lifetime and ultimately his demise.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
ß 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
the claim for service connection for the cause of the
veteranís death is not well grounded.
FINDING OF FACT
The claim for service connection for the cause of the
veteranís death is not plausible.
CONCLUSION OF LAW
The claim for service connection for the cause of the
veteranís death is not well grounded. 38 U.S.C.A. ß 5107(b)
(West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
The threshold question to be answered in this case is whether
the appellant has presented evidence of a well-grounded
claim. 38 U.S.C.A. ß 5107(a). A well-grounded claim is a
claim that is plausible, that is, one that is meritorious on
its own or capable of substantiation. Murphy v. Derwinski, 1
Vet.App. 78, 81 (1990). If a claim is not well grounded, the
appeal must fail with respect to it, and there is no duty to
assist the appellant further in the development of facts
pertinent to the claim. Id.
Service connection for the cause of the veteranís death may
be granted if a disability incurred in or aggravated by
service either caused or contributed substantially or
materially to cause death. 38 U.S.C.A. ß 1310 (West 1991);
38 C.F.R. ß 3.312 (1996).
The veteranís death certificate shows that on June 1, 1996,
the veteran died at the age of 70 from asphyxia and self
induced strangulation for sexual gratification. Another
significant condition which contributed to death, but which
did not result in the underlying cause, was atherosclerotic
cardiovascular disease. An autopsy was performed. During
his lifetime, the veteran was service-connected for
schizophrenic reaction for which a 30 percent disability
evaluation was assigned. The veteran was also service-
connected for residuals of a shell fragment wound, Muscle
Group XIII, of the left thigh, for which a 10 percent
evaluation was assigned and for residuals of a trench foot
for which a noncompensable evaluation was assigned.
Service 0medical records reveal that on examination for
separation from service conducted in December 1945, the
veteran was diagnosed as having anxiety reaction of moderate
to mild functional impairment.
Post-service medical records, to include both private and VA
medical records dating from 1947 to 1983, reveal that the
veteran was diagnosed as having schizophrenia. In 1951, a VA
medical report indicated that the veteranís schizophrenia was
in remission.
Statements received in September 1996 from David Antkowiak
and Reverend David A. Leslie, indicate that the behavior
exhibited by the veteran at the time of his death, was a
result of the veteran attempting to get his needs met and a
consequence of his anti-social behavior which was a result of
service. Reverend Leslie reported that it was obvious that
the veteran had many social problems some of which were not
war related.
Records from the Michigan State Police dated in August 1996,
to include an autopsy report, affirmed that the veteran died
from sex-associated affixa and that the death was accidental.
Such reports do not show that the veteranís service-connected
schizophrenic reaction caused or materially contributed to
the veteranís demise.
Following review of the entire evidence of record, the Board
acknowledges that during the veteranís lifetime, he was
service-connected for schizophrenic reaction. The record,
however, is devoid of any objective causal connection between
such disability and his demise. The record contains no
medical opinion suggesting that the service-connected
schizophrenic reaction played a material causal role in the
veteranís death. In fact, extensive reports from the
Michigan State Police show that the veteranís death was
accidental. As lay persons, neither the appellant, the
veteranís step-son or minister are competent to offer a
medical opinion attributing the veteranís demise to his
service-connected schizophrenic reaction. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494-495 (1992); Heuer v. Brown, 7
Vet. App. 379, 384 (1995). Where a determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence to the effect that the claim is plausible is
required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In
the absence of competent evidence showing that the claim is
plausible, the claim is not well grounded.
In reaching this determination, the Board recognizes that
this issue is being disposed of in a manner that differs from
that used by the RO. The Board has, therefore, considered
whether the appellant has been given adequate notice to
respond, and, if not, whether she has been prejudiced
thereby. Bernard v. Brown, 4 Vet.App. 384, 394 (1993). In
light of her failure to meet her obligation in the
adjudication process by not submitting adequate evidence and
because the outcome would be the same whether the claim was
treated as not well grounded or adjudicated on the merits,
the Board concludes that she has not been prejudiced by this
approach. See generally Edenfield v. Brown, 8 Vet.App. 384
(1995).
ORDER
Evidence of a well grounded claim for entitlement to service
connection for the cause of the veteranís death not having
been submitted, this appeal is denied.
___________________________
F. JUDGE FLOWERS
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. ß 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, ß 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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